Application Johnson v. N.Y.C. Emps' Ret. Sys.

1

2023 NY Slip Op 32427(U)

In the Matter of the Application of CHRISTOPHER JOHNSON, Petitioner, v. THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE BOARD OF TRUSTEES of the New York City Employees' Retirement System, THE MEDICAL BOARD of the New York City Employees' Retirement System, and THE CITY OF NEW YORK, Respondents.

Index No. 519481/2019

Supreme Court, Kings County

June 12, 2023

Unpublished Opinion

At an IAS Term, Part 92 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at 360 Adams Street, Brooklyn, New York, on the 12th day of June, 2023.

PRESENT: HON. KATHERINE A. LEVINE, Justice

DECISION AND ORDER

Catherine A. Levine, Justice

The following e-filed papers read herein:

NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed

1-10, 15

Opposing Affidavits (Affirmations)

18-77, 83

Affidavits/ Affirmations in Reply

78, 81

Other Papers:

_____

Petitioner Christopher Johnson ("petitioner" or "Johnson") moves for a judgment, pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"): (1) annulling the action of respondent New York City Employees' Retirement System ("NYCERS" or "respondent"), the Board of Trustees of NYCERS ("Board of Trustees"), the Medical Board of NYCERS ("Medical Board"), and the City of New York (collectively, "respondents") in denying the petitioner a performance of duty disability retirement ("disability benefit") under New York Retirement and Social Security Law ("RSSL) § 507-c, and declaring said action to be arbitrary, capricious unreasonable and unlawful; (2) directing and ordering respondents to retire petitioner with a three-quarter disability retirement pension; or in the alternative (3) remanding the matter to respondents to further review petitioner's application for a disability benefit.

Background and Procedural History

Petitioner was appointed as a Correction Officer with the NYC Department of Correction ("DOC") on January 17, 2008, and became a member of NYCERS on April 2, 2008. He was subsequently appointed to the position of Captain. On November 13, 2013, petitioner sustained injuries to his right arm and hand as a result of an assault by an inmate. On May 7, 2014, petitioner injured his left hand, wrist, and thumb while trying to restrain an inmate who assaulted him. Petitioner experienced swelling, pain, loss of strength and motion, weakness, numbness, difficulty grasping and had surgery on his left wrist following these injuries. Additionally, petitioner sustained injuries to his back from a motor vehicle accident on July 31, 2015, which were unrelated to his work as a Correction Officer.

On or about January 14, 2016, petitioner filed an Application for Disability Retirement pursuant to RSSL § 507-c^[1] (petitioner's first application) based upon the injuries he sustained during the aforementioned inmate assaults. On July 5, 2016, the Medical Board reviewed petitioner's application and all of the medical documentation he submitted and performed a physical examination. The Medical Board determined that the injuries petitioner sustained on November 13, 2013 and May 7, 2014, constituted inmate assaults under RSSL § 507-c. However, the Medical Board referred petitioner to a hand specialist, Dr. Roy Kulick, before making a recommendation regarding his disability application. After reviewing Dr. Kulick's report, the Medical Board determined "that the documentary and clinical evidence fail[ed] to substantiate that Christopher Johnson is disabled from performing the duties of Correction Captain with the Department of Correction" and recommended that his application be denied. On February 23, 2017, the Board of Trustees adopted the Medical Board's recommendation and denied petitioner's application.

On or about January 9, 2017, petitioner filed a second Application for Disability Retirement, this time pursuant to RSSL §§ 507-a, 507-c, 506 and 507 based on bilateral hand injuries related to his use of force on November 13, 2013 and May 7, 2014, as well as back pain, shoulder pain, bilateral leg pain, feet swelling, neck pain, complex regional pain syndrome, hip bursitis, bilateral carpal tunnel syndrome, and cervical disc injuries. The instant action only challenges the denial of petitioner's application for performance of duty retirement disability pursuant to RSSL § 507-c. Petitioner was interviewed and examined by the Medical Board on July 11, 2017. The Board also reviewed the reports of several of petitioner's treating physicians. The Medical Board determined that petitioner was disabled from performing the duties of Correction Captain due to his cervical spine fusion with residuals resulting from the off-duty motor vehicle accident he was in and that he was not disabled due to his left or right hand, lumbar spine or lower extremities. The Medical Board recommended that petitioner's application under RSSL §§ 507-a and 507-c be denied.

Thereafter, petitioner submitted additional medical records to the Medical Board. He was examined by the Medical Board on May 1, 2018, which revealed a positive Phalens test^[2] on the left side and positive carpal tunnel syndrome on the left side, and that he had a grip strength of 50 pounds in both hands. The Medical Board again determined that petitioner was not disabled from the duties of a Correction Captain due to the condition of either of his hands and recommended that his application for performance of duty disability retirement related to these injuries be denied. On August 28, 2018, the petitioner's attorney submitted a memo to the Board of Trustees noting that the Medical Board's own hand specialist, Dr. Kulick, had found numerous positive findings with regard to petitioner's hand. Specifically, counsel pointed to Dr. Kulick's opinion that he did not "feel that there is a reasonable expectation for recovery warranting re-evaluation. The condition is causally related to the accident of the stated date" (NYSCEF Doc No. 4).

On September 4, 2018, the Medical Board reconsidered the application based on additional documentation submitted by petitioner which was a report from Dr. Bhansali, who had conducted an orthopedic IME evaluation of petitioner on August 22, 2018, related to his Workers' Compensation claim. Dr. Bhansali found no numbness on either the right or the left wrist and recommended continued home exercise for both wrists and over the counter medications. The Medical Board found that this new evidence merely indicates that petitioner had not fully recovered from carpal tunnel release surgery he underwent on January 17, 2018, and that there was a need for additional treatment and recovery and thus this did not demonstrate evidence of permanent disability. Accordingly, the Medical Board reaffirmed its recommendation to deny petitioner's application.

On September 18, 2018, the Medical Board issued an addendum in which it considered the operative report submitted by petitioner related to the right carpal tunnel release surgery performed on January 17, 2018, and found that this documentation does not represent significant new information as the Medical Board was previously aware that petitioner had undergone this surgery. The Medical Board stated that it did not find petitioner to be permanently disabled due to the conditions of either his left or right hand and recommended denial of his application on that basis. The Medical Board noted that it had previously found that petitioner is "disabled from performing the duties of Correction Captain with the Department of Correction due to cervical spine fusion with residuals. This disability is unrelated to the inmate contact incidents of November 13, 2013 and May 7, 2014, and is the result of an unrelated motor vehicle accident that occurred on March 3, 2015."

Petitioner again submitted additional medical reports which the Medical Board considered on February 5, 2019. The Medical Board found that the records indicated that petitioner presented with subjective complaints of pain without deficits on physical examination, and that there was a lack of objective evidence of disability even by the examination reports from petitioner's own orthopedist. Thus, the Medical Board reaffirmed its previous recommendation to deny petitioner's application for performance of disability retirement. On May 9, 2019, the Board of Trustees met to consider petitioner's application. At the meeting petitioner's counsel argued that the Medical Board had not fully considered all of petitioner's treatment notes and merely focused on his range of motion. He noted that petitioner was performing light duty work after the hand injury and that when he injured his back, he was unable to return to work. However, petitioner's counsel claimed that petitioner had already been impaired from full duty at that time and had surgeries to both his left and right hands. At the meeting, the Board of Trustees noted that Dr. Kulick did not provide a clear indication of whether or not he believed petitioner was disabled as a result of the impairment to his hands. However, Dr. Joseph Bottner, Medical Advisor to the Board of Trustees and Chairman of the Medical Board, informed the Board of Trustees that the Medical Board acknowledged the impairment noted by Dr. Kulick, but determined that the impairment did not constitute a disability (NYSCEF Doc No. 76). The Board of Trustees noted that the fact that petitioner was placed on light duty did not indicate that he was disabled as he was still being treated for his hand injury and had been scheduled for surgery. Petitioner was notified that on May 9, 2019, the Board of Trustees had adopted the Medical Board's recommendation and denied his application for...